Amicus Curiae Brief — United States, Petitioner v. Zayn al-Abidin Muhammad Husayn, aka Abu Zubaydah, et al.
Supreme Court briefAug 20, 2021
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No. 20-827
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------UNITED STATES OF AMERICA,
Petitioner,
v.
ZAYN al-ABIDIN MUHAMMAD HUSAYN,
aka ABU ZUBAYDAH, et al.,
Respondents.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit
---------------------------------♦--------------------------------BRIEF OF HUMAN RIGHTS ORGANIZATIONS AS
AMICI CURIAE IN SUPPORT OF RESPONDENTS
---------------------------------♦--------------------------------AVIDAN Y. COVER
avidan.cover@case.edu
MILTON A. KRAMER LAW
CLINIC CENTER
CASE WESTERN
RESERVE UNIVERSITY
SCHOOL OF LAW
11075 East Boulevard
Cleveland, OH 44106
(216) 368-5224
TIMOTHY J. DROSKE
Counsel of Record
droske.tim@dorsey.com
DORSEY & WHITNEY LLP
50 South Sixth Street
Suite 1500
Minneapolis, MN 55402
(612) 340-2600
JOSHUA COLANGELO-BRYAN
colangelo.joshua@dorsey.com
DORSEY & WHITNEY LLP
51 West 52nd Street
New York, NY 10019
(212) 415-9234
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
INTERESTS OF AMICI CURIAE .......................
1
SUMMARY OF ARGUMENT ..............................
4
ARGUMENT ........................................................
6
I.
II.
IN ITS TREATMENT OF ABU ZUBAYDAH,
THE UNITED STATES IGNORED LAWS
AND PRINCIPLES OF HUMANE TREATMENT IT HAS DEVELOPED AND PROMOTED ......................................................
6
THE UNITED STATES HAS BEEN
CRITICAL TO THE DEVELOPMENT OF
INTERNATIONAL LAWS REQUIRING
ACCOUNTABILITY AND TRANSPARENCY
FOR HUMAN RIGHTS ABUSES .............. 10
A. International Law Has Always Been
Integral to the U.S. Legal System ....... 10
B. The United States Has Been a Driving
Force in Crafting Specific International
Humanitarian and Human Rights Laws
Prohibiting Abuses ................................ 11
1. Law of War ...................................... 12
2. Universal Declaration of Human
Rights .............................................. 15
3. International Covenant on Civil and
Political Rights ................................. 17
4. Convention Against Torture.............
20
ii
TABLE OF CONTENTS—Continued
Page
III.
THE UNITED STATES EXHORTS OTHER
COUNTRIES TO FOLLOW INTERNATIONAL LAWS REQUIRING ACCOUNTABILITY AND TRANSPARENCY FOR
HUMAN RIGHTS ABUSES ...................... 24
IV.
WHEN THE UNITED STATES FAILS TO
COMPLY WITH INTERNATIONAL LAW,
SUCH FAILURES ARE EXPLOITED BY
DESPOTS AND HARM THE UNITED
STATES STRATEGICALLY ........................ 28
V.
THE UNITED STATES MUST ABIDE
BY THE LAWS AND PRINCIPLES OF
TRANSPARENCY AND ACCOUNTABILITY
IT HAS ESTABLISHED .............................. 32
CONCLUSION..................................................... 34
iii
TABLE OF AUTHORITIES
Page
CASES
Am. Law Inst. v. Commonwealth,
882 A.2d 1088 (Pa. Commonw. Ct. 2005) ................16
Bithashwiwa & Mulumba v. Zaire,
Comm. No. 241/1987, U.N. Doc.
CCPR/C/37/D/241/1987 (1989)................................20
Hamdan v. Rumsfeld,
548 U.S. 557 (2006) .................................................15
Husayn (Abu Zubaydah) v. Poland,
No. 7511/13 (Eur. Ct. H.R. 2013) ..............................8
Husayn v. Mitchell,
938 F.3d 1123 (9th Cir. 2019) ................................. 8
Murray v. The Schooner Charming Betsy,
6 U.S. 64 (1804) .......................................................11
The Paquete Habana,
175 U.S. 677 (1900) .................................................11
Ex parte Quirin,
317 U.S. 1 (1942) .....................................................11
Salim v. Mitchell,
268 F. Supp. 3d 1132 (E.D. Wash. 2016)
(No. CV-15-0286-JLQ) ...............................................7
CONSTITUTIONAL PROVISIONS
U.S. Const. art. VI, § 2.................................................10
iv
TABLE OF AUTHORITIES—Continued
Page
STATUTES
28 U.S.C. § 1782 ............................................................9
2010 Magnitsky Act ....................................................29
OTHER AUTHORITIES
Adam Taylor, North Korea Releases List of U.S.
‘Human Rights Abuses’: ‘The U.S. is a Living
Hell’, Wash. Post, May 2, 2014 ................................29
Adam Taylor, U.S. Awash in ‘Terrible’ Human
Rights Abuses, Chinese Government Report
Claims, Wash. Post, Mar. 10, 2017 ..........................29
Alexander Hamilton, The Federalist No. 80 (J.
Cooke ed., 1961) ......................................................10
Antony J. Blinken, Sec’y of State, Virtual Remarks at the UN Security Council Open Debate on Multilateralism (May 7, 2021) ...................28
Carol Devine et al., Human Rights: The Essential Reference (1999) ................................................16
Christian Tomuschat, Introductory Note, International Covenant on Civil and Political
Rights, U.N. Audiovisual Libr. Int’l L., https://
legal.un.org/avl/ha/iccpr/iccpr.html (last visited
July 26, 2021) .................................................... 17, 20
CIA ‘Torture’ Condemned by World Media, BBC
News, Dec. 10, 2014 ........................................... 30, 31
Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 .... 20, 22, 23, 24
v
TABLE OF AUTHORITIES—Continued
Page
Country Reports on Human Rights Practices,
U.S. Dep’t of State, https://www.state.gov/
reports-bureau-of-democracy-human-rightsand-labor/country-reports-on-human-rightspractices/ (last visited July 6, 2021) .......................28
David Hackett Fischer, Washington’s Crossing
(2004) .......................................................................12
David M. Herszenhorn, Russia Denounces U.S.
Over C.I.A. Torture Report, N.Y. Times, Dec.
11, 2014 ...................................................................30
Department of the Army, Human Intelligence
Collector Operations (2006) ....................................15
Douglas A. Johnson, Alberto Mora, and Averell
Schmidt, The Strategic Costs of Torture, Foreign Affairs 121 (Sept./Oct. 2016), https://
www.law.upenn.edu/live/files/5734-johnsonmora-schmidt-the-strategic-costs-of .......................31
Dwight D. Eisenhower, Crusade in Europe
(1949) .......................................................................14
Econ. & Soc. Council, Comm’n of Human Rts.,
Compilation of the Comments of Governments
on the Draft International Covenant on Human Rights and on the Proposed Additional
Articles, U.N. Doc. E/CN.4/365 (1950) ...................17
Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 45 Colum.
J. Transnat’l L. 468 (2007) .................................. 9, 14
6 G. Hackworth, Digest of International Law
§ 577 (1943) .............................................................13
vi
TABLE OF AUTHORITIES—Continued
Page
General Orders No. 100: Instructions for the
Government of Armies of the United States in
the Field (Apr. 24, 1863)..........................................13
George H.W. Bush, President, Inaugural Address (Jan. 20, 1988) ...............................................25
George Washington Papers, Series 4, General
Correspondence: George Washington to Benedict Arnold, Quebec Campaign, Sept. 14,
1775 .........................................................................12
Human Rights Record of the United States in
2016, Xinhuanet (Mar. 9, 3:09 PM) http://www.
xinhuanet.com//english/china/2017-03/09/c_
136115481.htm .......................................................29
International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S.
171 ................................................... 17, 18, 19, 20, 32
J. Herman Burgers & Hans Danelius, The
United Nations Convention Against Torture: A
Handbook on the Convention Against Torture
and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (1988) ............................21
Johannes Morsink, The Universal Declaration
of Human Rights: Origins, Drafting, Intent
(1999) .......................................................................16
John Kerry, Sec’y of State, Remarks at Event
on Human Rights in the D.P.R.K. (Sept. 23,
2014) ........................................................................27
vii
TABLE OF AUTHORITIES—Continued
Page
Kristina Ash, U.S. Reservations to the International Covenant on Civil and Political Rights:
Credibility Maximization and Global Influence, 3 Nw. J. Int’l Hum. Rts. 1 (2005) ....................18
Maj. Michael L. Smidt, Yamashita, Medina &
Beyond: Command Responsibility in Contemporary Military Operations, 164 Mil. L. Rev.
155 (2000) ................................................................13
Manfred Nowak et al., The United Nations Convention Against Torture and Its Optional Protocol: A Commentary 306 (2d ed. 2019) ..................24
Manooher Mofidi and Amy Eckert, “Unlawful
Combatants” or “Prisoners of War”: The Law
and Politics of Labels, 36 Cornell Int’l L.J. 59
(2003) .......................................................................13
Mary Ann Glendon, A World Made New: Eleanor
Roosevelt and the Universal Declaration of
Human Rights (2001)..............................................16
Michael R. Pompeo, Sec’y of State, Determination of the Secretary of State on Atrocities in
Xinjiang, Press Statement (Jan. 19, 2021) .............27
One-Year Follow-up Response of the United
States of America to Recommendations of
the Committee Against Torture on its Combined Third to Fifth Periodic Reports (Nov.
27, 2015), https://2009-2017.state.gov/j/drl/rls/
250342.htm..............................................................22
viii
TABLE OF AUTHORITIES—Continued
Page
Paul M. Taylor, A Commentary on the International Covenant on Civil and Political Rights
(2020) .......................................................................19
Ronald Reagan, Candidate for U.S. President,
Election Eve Address: A Vision for America
(Nov. 3, 1980) ...........................................................25
Ronald Reagan, President, Message to the Senate Transmitting the Convention Against Torture and Inhuman Treatment or Punishment
(May 20, 1988) .........................................................21
Russia Condemns U.S. Over ‘Inquisitorial Torture,’ Reuters, Dec. 11, 2014 ....................................30
S. Exec. Rep. No. 101-30 (1990) ............................ 21, 22
S. Rep. No. 84-9 (1955) ................................................14
S. Rep. No. 102-23 (1992) ............................................18
Sarah Joseph & Melissa Castan, The International Covenant on Civil and Political Rights:
Cases, Materials, and Commentary 1861 (3d
ed. 2013) ..................................................................19
Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s
Detention and Interrogation Program, S. Rep.
No. 113-288 (2014) ............................................ 6, 7, 8
Statement by President Joseph R. Biden, Jr. on
International Day in Support of Victims of
Torture (June 26, 2021)...........................................26
ix
TABLE OF AUTHORITIES—Continued
Page
Statement by President George W. Bush on International Day in Support of Victims of Torture (June 26, 2003) ................................................26
Tai-Heng Cheng, The Universal Declaration of
Human Rights at Sixty: Is it Still Right for
the United States?, 41 Cornell Int’l L.J. 251
(2008) .......................................................................16
U.N. Comm. Against Torture, General Comment
No. 3 on Implementation of Article 14 by
States Parties, U.N. Doc. CAT/C/GC/3 (Nov. 19,
2012) ........................................................................23
U.N. Human Rights Comm., General Comment
No. 31 [80], The Nature of the General Legal
Obligation Imposed on States Parties to the
Covenant, U.N. Doc. CCPR/C/21/Rev. 1/Add. 13
(May 26, 2004) .........................................................20
Universal Declaration of Human Rights, G.A.
Res 217A (III), U.N. Doc. A/810 (Dec. 10,
1948) ............................................................ 15, 16, 17
1
INTERESTS OF AMICI CURIAE
Amici curiae are human rights organizations committed to promoting the rule of law and respect for fundamental rights.1 Of particular relevance here, amici
are dedicated to promoting accountability and transparency in connection with human rights violations,
including torture, as required by international law.
The International Federation for Human
Rights (“FIDH”) was founded in 1922 and is a federation of 192 national human rights organizations from
117 countries. It has a mandate to defend all rights set
forth in the Universal Declaration of Human Rights
and fight against impunity for the most serious crimes,
including torture.
The World Organization Against Torture
(“OMCT”) works with 200 member organizations in
over 90 countries to end torture, assist victims, and
protect human rights defenders at risk. Collectively,
OMCT is the largest global group actively opposing
torture.
The European Center for Constitutional and
Human Rights (“ECCHR”) is an independent, nonprofit human rights organization based in Germany.
ECCHR uses strategic international litigation to
1
No counsel for any party authored this brief in whole or in
part. No person other than counsel for amici made a monetary
contribution intended to fund the preparation or submission of
this brief. Counsel of record for each party has consented to the
filing of this brief.
2
protect victims against human rights violations and
hold perpetrators accountable for these egregious acts.
The Center for Victims of Torture (“CVT”) is
the oldest and largest torture survivor rehabilitation
center in the United States. Through programs operating in the U.S., the Middle East, and Africa, CVT annually rebuilds the lives of nearly 30,000 survivors,
including children. CVT also conducts research, training, and advocacy.
REDRESS is a non-governmental legal organization based in the United Kingdom and the Netherlands. Since 1992, REDRESS has represented several
hundred survivors of torture and has intervened in
many leading cases relating to torture around the
world.
Partners in Justice International (“PJI”) is a
non-profit organization working to strengthen justice
processes for victims and survivors of grave crimes
such as crimes against humanity, war crimes, and genocide. PJI provides practical support to prosecutors,
victim representatives, and investigators working in
post-conflict and post-dictatorship jurisdictions.
Human Rights Advocates (“HRA”) is a California non-profit founded in 1978 with national and international membership. It endeavors to advance the
cause of human rights to ensure that the most basic
rights are afforded to everyone. HRA has Special Consultative Status in the United Nations and has participated in meetings of U.N. human rights bodies for
thirty years.
3
The Global Justice Clinic (“GJC”) at the New
York University School of Law works to prevent and
redress violations of international human rights law.
GJC has represented victims and survivors of torture
before domestic and international courts. The views of
the Global Justice Clinic, like all NYU clinics, do not
purport to represent the views, if any, of the university.
The International Human Rights Clinical
Program (“IHRC”) at the Boston University School
of Law works in the areas of immigration, refugee/
asylum, humanitarian, and human rights litigation
and advocacy. IHRC students collaborate with human
rights organizations and non-governmental organizations in domestic courts and administrative bodies,
utilizing regional and international human rights
mechanisms.
The Human Rights Policy Lab (“HRPL”) at the
School of Law, University of North Carolina at Chapel
Hill, engages in various law-related strategies and
collaborates with human rights organizations on legislative and rule-making proposals, policy matters, research papers, and amicus briefs. The HRPL seeks to
address a broad range of human rights issues including U.S. obligations under international law.
The International Human Rights Clinic at
Santa Clara University School of Law focuses on international human rights litigation, advocacy, and policy
projects. The clinic combines classroom education with
supervised case and project management activities,
4
providing students with practical training, while serving its community and promoting social justice.
The War Crimes Research Office (“WCRO”) at
American University Washington College of Law serves
as a critical resource for tribunals and other organizations promoting accountability for atrocity crimes at the
international, regional and domestic level. The views
of the WCRO do not purport to represent the views, if
any, of the university.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
For decades, the United States has played a crucial role in the creation of international law instruments that prohibit human rights abuses, including
torture. These instruments provide that, in the case of
abuses, remedies must be had. Based on such laws and
the principles codified therein, the United States has
often been a powerful voice advocating for transparency and accountability when other nations commit
human rights abuses, whether in Russia, China, North
Korea or elsewhere.
Amici are deeply concerned by the position of the
U.S. government in this case. Rather than complying
with the discovery process and assisting a legitimate
judicial investigation into abuses inflicted upon Respondent Zayn al-Abidin Muhammad Husayn (“Abu
Zubaydah”)—a person in U.S. custody—the government argues that the state secrets privilege should be
applied uniformly to prevent the disclosure of any and
5
all information relating to such abuses—even as to
information that substantively has been in the public
domain. Obviously, this position, if validated, would
render the judiciary little more than a bystander in a
proceeding where it has an indispensable, statutorily
established role.
The government’s position clashes irreconcilably
with the international laws that the United States has
helped create. It also is incompatible with the critical
calls the United States has often made for other countries to be transparent and provide accountability for
victims of human rights abuses. Furthermore, the government’s position, if accepted, will damage the universal interest in preventing human rights violations and
providing remedies if they occur. It will provide cover
to authoritarian regimes that seek to conceal or even
justify their abuses by pointing to instances when the
United States has fallen short of accepted international standards. It also will damage the U.S.’s standing with its allies, causing strategic harm to U.S. policy
goals. Put most simply, the government’s position, if
accepted, will do great damage to the laws and principles requiring accountability and transparency for human rights abuses, including torture, that have long
been espoused by the United States.
---------------------------------♦---------------------------------
6
ARGUMENT
I.
IN ITS TREATMENT OF ABU ZUBAYDAH,
THE UNITED STATES IGNORED LAWS AND
PRINCIPLES OF HUMANE TREATMENT IT
HAS DEVELOPED AND PROMOTED
For nearly two decades, the United States has held
Abu Zubaydah in indefinite detention on the basis of
threadbare allegations that he was an “enemy combatant.” Beyond being detained without charge, Abu
Zubaydah was subjected to torture through the CIA’s
“enhanced interrogation” program at “black sites,” including in Poland.
As set forth in a comprehensive Senate report, Abu
Zubaydah was taken into custody in Pakistan in March
2002, based on CIA claims that he was among the top
three or four Al-Qaeda leaders and was involved in the
September 11, 2001 attacks. See Senate Select Committee on Intelligence, Committee Study of the Central
Intelligence Agency’s Detention and Interrogation Program, S. Rep. No. 113-288, Executive Summary at 410
(2014) (“SSCI Report”). The CIA claimed further that
Abu Zubaydah had specialized expertise to resist interrogation and that he was “certain” to be withholding
information about future attacks. Id. at 410-11.
Putatively for these reasons, the United States
abandoned its long-standing wartime interrogation
practices, which were governed by standards set
forth in international laws such as the Geneva Conventions, and determined that “enhanced interrogation” techniques were necessary. Understanding what
7
a dramatic break with existing law, policy and practice
these techniques would represent, the CIA sought advice from the Department of Justice’s Office of Legal
Counsel (“OLC”). In seeking OLC’s blessing, the CIA
repeated its representations regarding Abu Zubaydah.
In part on that basis, OLC opined that the “enhanced
interrogation” techniques did not constitute torture
and were not otherwise illegal. SSCI Report at 409-12.
Putting aside that the OLC’s legal analysis has
since been repudiated, the CIA’s representations regarding Abu Zubaydah were, in fact, false. The CIA itself ultimately determined Abu Zubaydah was not a
member of Al-Qaeda at all. SSCI Report at 411. Furthermore, CIA records never supported the assertion
that he helped plan the September 11 attacks or had
counter-intelligence capacities that would have assisted him in resisting interrogation. Id. at 410.
Beyond being legally (and morally) indefensible,
the “enhanced interrogation” techniques approved by
OLC rested on the weakest of methodological foundations. The techniques were devised by two psychologists, James Elmer Mitchell and John “Bruce”
Jessen, working under contract for the CIA. 2 Neither
had ever participated in a real-life interrogation. SSCI
Report at 21. Notwithstanding their lack of expertise,
Mitchell and Jessen developed numerous interrogation
2
The SSCI Report refers to Mitchell and Jessen by the aliases SWIGERT and DUNBAR. Both have admitted to their roles
in the CIA program in other litigation and disclosed their roles in
other ways. See Answer to Complaint, Salim v. Mitchell, 268
F. Supp. 3d 1132 (E.D. Wash. 2016) (No. CV-15-0286-JLQ).
8
methods that were sanctioned by OLC and subsequently employed on Abu Zubaydah.
Mitchell and Jessen determined that “waterboarding” was an “absolutely convincing technique” to be
used against Abu Zubaydah. SSCI Report at 36. Based
on Mitchell and Jessen’s recommendations, the CIA
waterboarded Abu Zubaydah repeatedly, including
83 times in a single month. Consistent with Mitchell
and Jessen’s program, interrogators also made Abu
Zubaydah maintain stress positions, hit him in the
face, slammed him against walls, and subjected him to
sleep deprivation. Id. at 42. During one 20-day period,
U.S. personnel kept Abu Zubaydah in a coffin-size box
for a total of 266 hours (11 days, 2 hours) and in another confinement box that had a width of 21 inches, a
depth of 2.5 feet, and a height of 2.5 feet for an additional 29 hours. The CIA interrogators told Abu
Zubaydah that the only way he would leave the facility
was in the coffin-shaped box. Id. at 42. This is only a
partial list of the brutal conduct inflicted upon Abu
Zubaydah. See generally SSCI Report.
Put simply, Abu Zubaydah was tortured, as the
Ninth Circuit and the European Court of Human
Rights both found. See Husayn v. Mitchell, 938 F.3d
1123, 1127 (9th Cir. 2019); Husayn (Abu Zubaydah) v.
Poland, No. 7511/13 (Eur. Ct. H.R. 2013). Indeed, if the
treatment directed at Abu Zubaydah were ever inflicted upon U.S. service members or civilians by a
foreign power, it would be unequivocally condemned
as torture by the U.S. government and the response
from the United States would be punishing. See, e.g.,
9
Evan Wallach, Drop by Drop: Forgetting the History of
Water Torture in U.S. Courts, 45 Colum. J. Transnat’l
L. 468, 477-93 (2007) (describing numerous U.S. prosecutions of Japanese officials for subjecting U.S. servicemen to the “water cure” and other torture during World
War II).
Given this chronology, the instant litigation is, if
anything, quite modest. This case arises from an application, pursuant to 28 U.S.C. § 1782, for discovery to be
used in a foreign proceeding. Moreover, the Ninth Circuit order at issue did not direct the district court to
order the release of information, but rather simply to
separate privileged from non-privileged information.
As addressed in detail below, the United States
has played an integral role in the development of a
series of international legal instruments which—as a
matter of human rights law and humanitarian law—
prohibit torture and other inhumane treatment. These
instruments, to which the United States is bound and
has urged other countries to follow, require transparency and accountability in the event of violations. Abu
Zubaydah’s torture unquestionably violated the very
legal instruments and standards the United States
has helped develop and sought to promote. The U.S.
government’s current position that no disclosure of any
information relating to the torture of Abu Zubaydah is
permitted only compounds the U.S.’s failure to abide by
the laws it has maintained should govern the conduct
of the rest of the world’s nations.
10
II.
THE UNITED STATES HAS BEEN CRITICAL TO THE DEVELOPMENT OF INTERNATIONAL LAWS REQUIRING ACCOUNTABILITY AND TRANSPARENCY FOR HUMAN
RIGHTS ABUSES
A. International Law Has Always Been Integral to the U.S. Legal System
The United States has viewed international law as
integral to U.S. law since the Republic was founded. In
the words of Alexander Hamilton:
The Union will undoubtedly be answerable to
foreign powers for the conduct of its members.
And the responsibility for injury ought ever to
be accompanied by the faculty of preventing
it. As the denial or perversion of justice by the
sentences of courts, as well as in any other
manner, is with reason classed among the just
causes of war, it will follow that the federal judiciary ought to have cognizance of all of the
causes in which the citizens of other countries
are concerned. This is not less essential to the
preservation of the public faith than to the security of the public tranquility.3
The Constitution itself proclaims treaties—as well as
the Constitution and federal statutes—to be the supreme law of the land. U.S. Const. art. VI, § 2.
This Court has long held that international law is
part of U.S. law, and, whether or not directly applied in
3
Alexander Hamilton, The Federalist No. 80, at 536 (J.
Cooke ed., 1961).
11
a particular instance, is relevant to interpreting U.S.
law, where appropriate. See The Paquete Habana, 175
U.S. 677, 700 (1900) (“International law is part of our
law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction, as often as
questions of right depending on it are duly presented
for their determination”); Ex parte Quirin, 317 U.S. 1,
27-28 (1942) (in assessing the rights of “unlawful combatants,” observing that “from the very beginning of
its history this Court has recognized and applied the
laws of war as including that part of the law of nations
which prescribes, for the conduct of war, the status,
rights and duties of enemy nations as well as of enemy individuals”). This Court also has affirmed “the
Charming Betsy rule,” i.e., when appropriate, U.S. law
should be interpreted consistently with international
obligations. Murray v. The Schooner Charming Betsy,
6 U.S. 64, 118 (1804) (“an act of Congress ought never
to be construed to violate the law of nations if any other
possible construction remains. . . .”).
B. The United States Has Been a Driving
Force in Crafting Specific International
Humanitarian and Human Rights Laws
Prohibiting Abuses
Beyond having had an abiding respect for existing
international law from its founding, the United States
has played an important role in developing new humanitarian and human rights instruments. Most relevant, the United States has championed a range of
international laws designed to enhance transparency
12
and accountability for those held in wartime detention
and those subjected to torture under any circumstances.
1. Law of War
The United States has played a leading role in
the development of international humanitarian law—
governing armed conflict—from before the country’s
founding through the execution of the Geneva Conventions in 1949. Indeed, during the Revolutionary War,
George Washington refused to torture Hessian and
British prisoners, including those who had previously
abused his troops, writing in a letter to another American officer:
Should any American soldier be so base and
infamous as to injure any [prisoner] . . . I do
most earnestly enjoin you to bring him to such
severe and exemplary punishment as the
enormity of the crime may require.
George Washington Papers, Series 4, General Correspondence: George Washington to Benedict Arnold,
Quebec Campaign, Sept. 14, 1775 (on file with the Library of Congress). Washington also stated that the
American army had to be “an army of liberty and freedom and that the rights for which they were fighting
should be extended to their enemies,” asserting that
“victory would come because America deserves to win,”
in part due to humane treatment of enemy soldiers.
David Hackett Fischer, Washington’s Crossing 276
(2004).
13
President Lincoln promulgated General Order 100
(known as the “Lieber Code”), codifying the laws of war
for U.S. forces. General Orders No. 100: Instructions for
the Government of Armies of the United States in the
Field (Apr. 24, 1863). This document greatly influenced
subsequent international discussion that led to the
codification of the laws of war, including the 1899 and
1907 Hague Conventions. See Manooher Mofidi and
Amy Eckert, “Unlawful Combatants” or “Prisoners of
War”: The Law and Politics of Labels, 36 Cornell Int’l
L.J. 59, 63 (2003).
During the First World War, the United States protested the mistreatment of its soldiers detained by
Germany, with Secretary of State Lansing demanding
that the German government “immediately take such
steps as will effectively guarantee to American prisoners in its hands, both in letter and in spirit, that
humane treatment which by all the principles of international law and usage is to be expected from the Government of a civilized state and its officials.” 6 G.
Hackworth, Digest of International Law § 577, at 278
(1943) (quoting Secretary of State (Lansing) to the Ambassador to Spain (Willard), telegram 850, Jan. 28,
1918, 1918 For. Rel. Supp. 2, at 19)).
During World War II, the United States warned
Japan that it would be held accountable for the mistreatment of U.S. and allied soldiers. See Maj. Michael
L. Smidt, Yamashita, Medina & Beyond: Command Responsibility in Contemporary Military Operations, 164
Mil. L. Rev. 155, 174 (2000) (citing 203 Judgment of
the International Japanese War Crimes Trials in the
14
International Military Tribunal for the Far East 49,
748 (1948)); Wallach, supra at 477-93 (describing
U.S. prosecutions for mistreatment, including “water
cure”). The United States made similar entreaties to
Germany, while maintaining that it would not respond
in kind to any German mistreatment of U.S. prisoners
of war. Dwight D. Eisenhower, Crusade in Europe 469
(1949). In response to a Soviet general’s inquiry as to
why the United States deemed it necessary to expend
such considerable efforts to preserve the well-being of
German prisoners, President Eisenhower stated:
[I]n the first place my country was required to
do so by the terms of the Geneva Convention.
In the second place, the Germans had some
thousands of American and British prisoners
and I did not want to give Hitler the excuse or
justification for treating our prisoners more
harshly than he already was doing.
Id.
Having already been a party to the original 1864
Geneva Convention and one of only two countries to
ratify initial attempts to expand the 1864 Convention,
the United States signed the Geneva Conventions of
1949 in 1955.4 U.S. officials also had advocated for
several revisions of the 1949 Conventions to ensure
they would provide minimum guarantees of humane
treatment for persons in enemy hands, pursuant to
4
The United States ratified the 1949 Conventions in 1955
after the Korean War concluded, believing that more careful deliberation regarding the instruments could occur after the conflict
ended. See S. Rep. No. 84-9, at 3 (1955).
15
Common Article 3 (which appears in all four Geneva
Conventions). Among other things, Common Article
3 prohibits torture as well as cruel, humiliating
and degrading treatment.5 This Court in Hamdan v.
Rumsfeld, 548 U.S. 557, 631-32 (2006), held that Common Article 3 protects those captured in hostilities
with non-state terrorist groups, which is what the government alleges is the case with Abu Zubaydah.
2. Universal Declaration of Human
Rights
The seminal Universal Declaration of Human
Rights, G.A. Res 217A (III), U.N. Doc. A/810 at 71 (Dec.
10, 1948) (“UDHR”), established legal principles that
were vital in and of themselves, but also provided the
foundation for subsequent human rights treaties. The
United States took a leading role in the negotiation
and drafting of the UDHR. As a delegate to the United
Nations and as the first Chairperson of the Commission on Human Rights, former First Lady Eleanor
Roosevelt played an influential role in the creation of
5
The policies of the U.S. armed forces, including the operative 2006 United States Army Field Manual for Human Intelligence Collector Operations, implement these and other provisions
of the Geneva Conventions. See Department of the Army, Human
Intelligence Collector Operations, FM 2-22.3 (FM 34-52) 5-26
(2006) (“Use of torture by US personnel would bring discredit
upon the US and its armed forces while undermining domestic
and international support for the war effort. It also could place
US and allied personnel in enemy hands at a greater risk of abuse
by their captors. Conversely, knowing the enemy has abused US
and allied POWs does not justify using methods of interrogations
specifically prohibited by law, treaty, agreement, and policy.”).
16
the UDHR, which sought to set a “common standard of
achievement for all peoples and nations” in recognition
of the “inherent dignity” and “equal and inalienable
rights” of all humans. UDHR, Preamble, U.N. Doc.
A/810 at 71-72; see generally Mary Ann Glendon, A
World Made New: Eleanor Roosevelt and the Universal
Declaration of Human Rights (2001).
Beyond that, the American Law Institute drafted
the first document that would form the basis of the
UDHR. Am. Law Inst. v. Commonwealth, 882 A.2d
1088, 1090 (Pa. Commonw. Ct. 2005). Another American civil society group, the American Jewish Committee, was also highly influential in shaping the UDHR,
both at the United Nations and within the Truman Administration. See Tai-Heng Cheng, The Universal Declaration of Human Rights at Sixty: Is it Still Right for
the United States?, 41 Cornell Int’l L.J. 251, 257 n.43
(2008). And, when the drafters of the UDHR convened
in New York in the spring of 1948, at least 22 civil society organizations appeared; most were from the
United States and they exerted considerable influence
on the proceedings. Id. at 262-63.
The careful drafting of the UDHR indisputably reflected U.S. legal traditions. The Constitution’s Bill of
Rights served as a model for the UDHR. See Johannes
Morsink, The Universal Declaration of Human Rights:
Origins, Drafting, Intent 1 (1999). Indeed, the documents essential to the founding of the United States
have been characterized as human rights instruments.
See Carol Devine et al., Human Rights: The Essential
Reference 26-29 (1999) (“the American Declaration of
17
Independence was the first civic document that met a
modern definition of human rights.”).
The UDHR has obvious relevance in this case.
Specifically, Article 5 of the UDHR states, “[n]o one
shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.” Article 8 provides that “[e]veryone has the right to an effective
remedy . . . for acts violating the fundamental rights
granted him. . . .” These principles are entirely consistent with the U.S. legal tradition.
3. International Covenant on Civil and
Political Rights
As with the UDHR, the foundational principles for
the International Covenant on Civil and Political
Rights, Dec. 16, 1966, 999 U.N.T.S. 171 (“ICCPR”), derive in part from the Bill of Rights. See Christian Tomuschat, Introductory Note, International Covenant on
Civil and Political Rights, U.N. Audiovisual Libr. Int’l
L., para. 2, https://legal.un.org/avl/ha/iccpr/iccpr.html
(last visited July 26, 2021). Furthermore, the United
States directly contributed to the drafting of the ICCPR in the 1950s and 1960s under both Democratic
and Republican administrations; in fact, the United
States was one of only a handful of countries that commented on nearly every article of the draft. See, e.g.,
Econ. & Soc. Council, Comm’n of Human Rts., Compilation of the Comments of Governments on the Draft
International Covenant on Human Rights and on the
Proposed Additional Articles, U.N. Doc. E/CN.4/365
(1950).
18
In 1977, the United States signed the ICCPR, but
ratification initially stalled in the Senate. See Kristina
Ash, U.S. Reservations to the International Covenant
on Civil and Political Rights: Credibility Maximization
and Global Influence, 3 Nw. J. Int’l Hum. Rts. 1 at ¶¶ 8,
11 (2005). The implications of this failure were noted
by the Senate Committee on ratification, which stated:
In view of the leading role that the United
States plays in the international struggle for
human rights, the absence of U.S. ratification
of the Covenant is conspicuous and, in the
view of many, hypocritical. The Committee believes that ratification will remove doubts
about the seriousness of the U.S. commitment
to human rights and strengthen the impact of
U.S. efforts in the human rights field.
S. Rep. No. 102-23, at 3 (1992). Thus, when the United
States ratified the ICCPR on November 21, 1991, a
significant motivation was to show the world that the
most powerful country on earth would undertake serious efforts to respect human rights and to urge others
to do the same.
The ICCPR contains several provisions of relevance here. Article 7 provides that, “[n]o one shall be
subjected to torture or to cruel, inhuman or degrading
treatment or punishment.” Article 10 states that detainees “shall be treated with humanity and with respect for the inherent dignity of the human person.”
And Article 2(1) provides that states must undertake
efforts “to respect and to ensure to all individuals . . .
19
the rights recognized in the present Covenant, without
distinction of any kind. . . .”
The ICCPR also requires states to provide remedies for violations of its provisions. Article 2(3)
provides that each State Party to the ICCPR will
undertake:
(a) To ensure that any person whose rights
or freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding that the violation has been committed by
persons acting in an official capacity;
(b) To ensure that any person claiming such
a remedy shall have his right thereto determined by competent judicial, administrative
or legislative authorities, or by any other
competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities
shall enforce such remedies when granted.
In fact, the right to a remedy is widely recognized as a
central feature of the ICCPR. See Paul M. Taylor, A
Commentary on the International Covenant on Civil
and Political Rights 59 (2020) (right to a remedy “is
pivotal to securing ‘respect’ for and for ensuring to all
individuals under a State’s responsibility the rights
enshrined in the Covenant”); Sarah Joseph & Melissa
Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary 1861
20
(3d ed. 2013) (right to a remedy “is a key component of
the ICCPR”).6
The U.N. Human Rights Committee, an independent body tasked by the treaty with monitoring states’
implementation of the ICCPR, emphasizes that remedies should not be theoretical, but that “States Parties
must ensure that individuals . . . have accessible and
effective remedies to vindicate” their rights. U.N. Human Rights Comm., General Comment No. 31 [80],
The Nature of the General Legal Obligation Imposed
on States Parties to the Covenant, ¶ 15, U.N. Doc.
CCPR/C/21/Rev. 1/Add. 13 (May 26, 2004) (emphasis
added). Denying such remedies would defeat the purposes of the ICCPR. Id. ¶ 17; see also Bithashwiwa &
Mulumba v. Zaire, Comm. No. 241/1987, ¶ 14, U.N. Doc.
CCPR/C/37/D/241/1987 (1989) (states must provide
effective measures to remedy violations, including allowing victims to challenge violations in court).
4. Convention Against Torture
The United States played an important role in
the development of the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment
or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (“Convention”). The United States supported an early draft
6
The ICCPR has had an even broader reach than the obligations it establishes itself. When new national constitutions are
written, the ICCPR often serves as a “yardstick” against which
fundamental rights are measured, and some domestic constitutions contain provisions instructing courts to interpret national
laws in light of the ICCPR. See Tomuschat, supra at ¶ 8.
21
of the Convention and actively participated during
seven subsequent years of revisions. See J. Herman
Burgers & Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment 40 (1988); S.
Exec. Rep. No. 101-30, at 2 (1990). Throughout this
process, the United States provided commentary and
drafting suggestions. Id. at 2-3.
Following execution of the Convention, President
Reagan transmitted the document to the Senate, forcefully emphasizing that “[r]atification of the Convention
by the United States will clearly express United States
opposition to torture, an abhorrent practice unfortunately prevalent in the world today” and that “[b]y
giving its advice and consent to ratification of this Convention, the Senate . . . will demonstrate unequivocally
our desire to bring an end to the abhorrent practice of
torture.” Ronald Reagan, President, Message to the
Senate Transmitting the Convention Against Torture
and Inhuman Treatment or Punishment (May 20,
1988). After ratification was delayed, President George
H.W. Bush sent the Convention to the Foreign Relations Committee in 1989, with a note stating that the
Convention had an “urgent need for Senate approval.”
S. Exec. Rep. No. 101-30, at 2 (1990).
In 1990, the Committee unanimously voted on a
resolution to ratify the Convention. Id. at 3. In the
Committee’s words, ratification would “demonstrate
clearly and unequivocally U.S. opposition to torture
and U.S. determination to take steps to eradicate it” as
22
well as put “the United States [ ] in a stronger position
to prosecute alleged torturers and to bring to task
those countries in the international arena that continue to engage in this heinous and inhumane practice.” Id. at 3-4. In 1994, the United States ratified the
Convention and, since then, the United States has
consistently affirmed its commitment to the binding
norms set forth in the Convention by way of reports to
the United Nations. See, e.g., One-Year Follow-up Response of the United States of America to Recommendations of the Committee Against Torture on its
Combined Third to Fifth Periodic Reports (Nov. 27,
2015), https://2009-2017.state.gov/j/drl/rls/250342.htm
(“The United States upholds the bedrock principle that
torture and cruel, inhuman, and degrading treatment
or punishment are categorically and legally prohibited
always and everywhere, violate U.S. and international
law, and offend human dignity. Torture is contrary to
the founding principles of our country and to the universal values to which we hold ourselves and the international community.”).
The Convention specifically prohibits both torture
and other cruel, inhuman, or degrading treatment,
while also requiring member States to provide effective remedies in the event of a breach. Article 14(1) provides that “[e]ach State Party shall ensure in its legal
system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate
compensation, including the means for as full rehabilitation as possible.”
23
The U.N. Committee Against Torture, which oversees State compliance with the Convention, has explained that redress, as required under Article 14 of
the Convention, “encompasses the concept of ‘effective
remedy’ and ‘reparation.’ ” U.N. Comm. Against Torture, General Comment No. 3 on Implementation of
Article 14 by States Parties, ¶ 2, U.N. Doc. CAT/C/
GC/3 (Nov. 19, 2012). To be effective, a remedy must
provide “fair and adequate compensation for torture
or ill-treatment” and “should be sufficient to compensate for any economically assessable damage resulting from torture or ill-treatment, whether pecuniary
or non-pecuniary.” Id. ¶ 10. The Committee has emphasized the importance of judicial remedies for victims to achieve full rehabilitation: “Judicial remedies
must always be available to victims, irrespective of
what other remedies may be available, and should enable victim participation.” Id. ¶ 30 (emphasis added).
Of particular significance in the instant matter,
Article 9 provides:
7
1.
States Parties shall afford one another
the greatest measure of assistance in
connection with criminal proceedings
brought in respect of any of the offences
referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.7
2.
States Parties shall carry out their obligations under paragraph 1 of this article
Article 4 states, inter alia, “[e]ach State Party shall ensure
that all acts of torture are offences under its criminal law.”
24
in conformity with any treaties on mutual
judicial assistance that may exist between them.
The United States has, in many instances, strived to
meet its Article 9 obligations—even when security
challenges arise. For example, U.S. personnel in wartorn Afghanistan assisted British authorities in investigating former Afghan warlord Faryadi Sarwar
Zardad, leading to his 2005 conviction for torture.
Manfred Nowak et al., The United Nations Convention
Against Torture and Its Optional Protocol: A Commentary 306 (2d ed. 2019).
III. THE UNITED STATES EXHORTS OTHER
COUNTRIES TO FOLLOW INTERNATIONAL
LAWS REQUIRING ACCOUNTABILITY AND
TRANSPARENCY FOR HUMAN RIGHTS
ABUSES
The United States has not only played an integral
role with respect to the creation of the legal instruments addressed above, but has used its powerful position in the world to call for other nations to ensure
transparency and accountability in the case of human
rights violations, including torture:
•
President Ronald Reagan: “Together, tonight, let us say what so many long to
hear: that America is still united, still
strong, still compassionate, still clinging
fast to the dream of peace and freedom,
still willing to stand by those who are
persecuted or alone. . . . For those who
25
are victims of police states or government induced torture or terror, for those
who are persecuted, for all the countries
and people of the world who seek only to
live in harmony with each other, tonight
let us speak for them.” Ronald Reagan,
Candidate for U.S. President, Election
Eve Address: A Vision for America (Nov.
3, 1980).
•
President George H.W. Bush: “Great nations like great men must keep their
word. When America says something,
America means it, whether a treaty or an
agreement or a vow made on marble steps
. . . Good will begets good will. Good faith
can be a spiral that endlessly moves on.”
George H.W. Bush, President, Inaugural
Address (Jan. 20, 1988).
•
President George W. Bush: “The United
States is committed to the world-wide
elimination of torture and we are leading
this fight by example. I call on all governments to join with the United States and
the community of law-abiding nations in
prohibiting, investigating, and prosecuting all actions of torture and in undertaking to prevent other cruel and unusual
punishment. I call on all nations to speak
out against torture in all its forms and
to make ending torture an essential part
of their diplomacy. I further urge governments to join America and others
in supporting torture victims’ treatment
centers, contributing to the UN Fund for
26
the Victims of Torture, and supporting
the efforts of non-governmental organizations to end torture and assist its victims.” Statement by President George W.
Bush on International Day in Support of
Victims of Torture (June 26, 2003).
•
President Joseph Biden: “Torture goes
against everything we stand for as a nation, and we must never again resort to
its use. The late-Senator John McCain,
my friend and a torture survivor, put it
best: ‘the use of torture compromises
that which most distinguishes us from
our enemies—our belief that all people,
even captured enemies, possess basic
human rights, which are protected by international conventions the U.S. not only
joined, but for the most part authored.’ ”
Statement by President Joseph R. Biden,
Jr. on International Day in Support of
Victims of Torture (June 26, 2021).
•
Michael R. Pompeo, Secretary of State,
in addressing the Chinese government’s
treatment of its Uighur Community:
“The United States of America has led
the world in holding the perpetrators of
the most heinous human rights abuses
accountable. . . . Americans have given
voice to those who have been silenced by
evil, and stood with the living who cry
out for truth, the rule of law, and justice.
We do so not because we are called to act
by any international court, multilateral
body, or domestic political concern. We do
27
so because it is right. . . . The United
States calls upon the PRC immediately to
. . . end all torture and abuse in places of
detention.” Michael R. Pompeo, Sec’y of
State, Determination of the Secretary of
State on Atrocities in Xinjiang, Press
Statement (Jan. 19, 2021).
•
John Kerry, Secretary of State, remarking
on North Korea: “What goes on inside
North Korea . . . these abuses are actually
unfathomable to nearly the entire world,
and they should have no place in the 21st
century . . . We should all ask ourselves if
we who are free, . . . if we don’t stand with
men and women suffering in anonymity
in places like North Korea, then what do
we stand for? And if we don’t give voice to
the voiceless, then why even bother to
speak about these issues?” John Kerry,
Sec’y of State, Remarks at Event on Human Rights in the D.P.R.K. (Sept. 23,
2014).
•
Antony J. Blinken, Secretary of State:
“[H]uman rights and dignity must stay at
the core of the international order. The
foundational unit of the United Nations
. . . is not just the nation state. It’s also
the human being. . . . [T]he Universal
Declaration of Human Rights begins with
the word ‘universal’ because our nations
agreed there are certain rights to which
every person, everywhere, is entitled. Asserting domestic jurisdiction doesn’t give
any state a blank check to enslave,
28
torture, disappear, ethnically cleanse
their people, or violate their human
rights in any other way.” Antony J.
Blinken, Sec’y of State, Virtual Remarks
at the UN Security Council Open Debate
on Multilateralism (May 7, 2021).
IV. WHEN THE UNITED STATES FAILS TO
COMPLY WITH INTERNATIONAL LAW,
SUCH FAILURES ARE EXPLOITED BY
DESPOTS AND HARM THE UNITED
STATES STRATEGICALLY
When the United States falls short of the high
standards it has helped create, there are highly undesirable, real-world results. First, well-known human
rights abusers, including China, North Korea, and
Russia have all pointed to the U.S.’s failures to adhere
to international norms as justification for their bad acts.
By way of example, the U.S. Department of State releases an annual human rights report regarding other
countries’ adherence to “internationally recognized . . .
rights, as set forth in the Universal Declaration of
Human Rights and other international agreements.”
Country Reports on Human Rights Practices, U.S. Dep’t
of State, https://www.state.gov/reports-bureau-ofdemocracy-human-rights-and-labor/country-reportson-human-rights-practices/ (last visited July 6, 2021).
In 2016, the U.S. report “singled out” China for its “severe” repression of civil and political rights, noting specifically “that torture and illegal detentions at ‘black
jails’ remained an issue.” Id. ¶ 10.
29
Since 2000, the Chinese government has issued a
putative human rights report, in a transparent attempt to divert attention from its own abuses and trivialize the issues raised in State Department reports.
Adam Taylor, U.S. Awash in ‘Terrible’ Human Rights
Abuses, Chinese Government Report Claims, Wash.
Post, Mar. 10, 2017. In 2016, the Chinese report countered the above-cited U.S. report, asserting that the
United States “pointed fingers and cast blame on the
human rights situation in many countries while paying no attention to its own terrible human rights problems . . . The United States repeatedly trampled on
human rights in other countries . . . The issue of illegal
detention and torturing prisoners of other countries
remained unsolved.” Human Rights Record of the
United States in 2016, Xinhuanet (Mar. 9, 3:09 PM)
http://www.xinhuanet.com//english/china/2017-03/09/c_
136115481.htm.
North Korea has taken a page from the same playbook. After the United Nations released a report on human rights abuses in North Korea in 2014, North
Korea responded with its own report on the United
States, stating “[t]he U.S. is the world’s worst human
right [sic] abuser and tundra of a human being’s rights
to existence.” Adam Taylor, North Korea Releases List
of U.S. ‘Human Rights Abuses’: ‘The U.S. is a Living
Hell’, Wash. Post, May 2, 2014.
After the United States sought to punish Russia
for human rights abuses through the 2010 Magnitsky
Act, and the United Nations issued a 2012 report accusing Russia of torture, Russia attempted to divert
30
attention from its conduct by criticizing the United
States for the CIA’s interrogation and detention program. David M. Herszenhorn, Russia Denounces U.S.
Over C.I.A. Torture Report, N.Y. Times, Dec. 11, 2014. A
Russian government official claimed the United States
was guilty of hypocrisy by holding itself out as a global
human rights standard-bearer while Guantanamo remained open: “This gloomy picture of history hasn’t
been closed yet. . . . This situation does not fit with the
claims of the United States for the title of ‘model of democracy.’ This is far from reality.” Id. The official specifically claimed that the “gross systemic rights
violations” inflicted on Guantanamo detainees are contrary to the U.S.’s desire to be regarded as a model of
democracy. Russia Condemns U.S. Over ‘Inquisitorial
Torture,’ Reuters, Dec. 11, 2014.
Other countries have also pointed to the CIA’s
treatment of detainees. In 2014, China’s state-run
news agency wrote, “[p]erhaps the U.S. government
should clean up its own backyard first and respect the
rights of other countries to resolve their issues by
themselves. . . . America is neither a suitable role
model nor a qualified judge on human rights issues in
other countries.” CIA ‘Torture’ Condemned by World
Media, BBC News, Dec. 10, 2014. A pro-China Hong
Kong newspaper contended, “[t]he report will be powerful evidence that will totally unveil the ugly human
rights face of the U.S. and will serve a heavy blow to
its credibility and international image.” Id. Iranian
media wrote: “Torture, surveillance, shooting—the
31
three pillars of American human rights. . . . It puts a
question mark over . . . American human rights.” Id.
Beyond being cynically exploited by adversaries,
failures of the United States to meet international
standards weaken alliances to the U.S.’s strategic detriment. In one instance, the Netherlands delayed sending troops to join the U.S.–led coalition in Afghanistan
due to concerns regarding the CIA interrogation program, until the United States provided assurances
that such abuses would not be continued. Douglas A.
Johnson, Alberto Mora, and Averell Schmidt, The
Strategic Costs of Torture, Foreign Affairs 121, 125
(Sept./Oct. 2016), https://www.law.upenn.edu/live/files/
5734-johnson-mora-schmidt-the-strategic-costs-of. Similarly, U.S. interrogation practices led the Finnish
parliament to delay the execution of a U.S.–European
Union extradition and legal cooperation treaty from
2005 to 2007. Id. at 125-26. Based on concerns that
the United States was continuing its practice of secretly transporting detainees on airplanes, the United
Kingdom and Irish governments imposed additional
burdensome requirements on U.S. military flights
between 2006 and 2008. Id. at 126. And military personnel from the U.S.’s closest intelligence partners,
Australia, Canada, New Zealand, and the United Kingdom, informed the United States that its use of torture
would adversely affect cooperation across military, intelligence, and law enforcement counterterrorism efforts. Id. at 125.
32
V.
THE UNITED STATES MUST ABIDE BY
THE LAWS AND PRINCIPLES OF TRANSPARENCY AND ACCOUNTABILITY IT HAS
ESTABLISHED
As detailed, the United States has long held itself
out to the world as a beacon of freedom. Beyond that,
the United States has been critical to the development
of legal instruments designed to prevent human rights
abuses and ensure accountability when abuses occur.
It also has been a powerful voice, urging nations of the
world to abide by those legal instruments and the principles enshrined therein, including by making amends
for human rights violations.
Given the U.S.’s role in this context, the path
forward is clear in connection with the pending investigation into the treatment of Respondent. As delineated by laws the United States helped establish,
such as the ICCPR and the Convention Against Torture, the United States must be transparent and accountable. Unfortunately, the government’s position in
this case contradicts the laws it has helped draft, the
values reflected in those laws, and the exhortations
it has often made to foreign countries that commit
abuses.
Notably, the order at issue here is quite modest,
directing the district court simply to separate information the district court found not subject to the
state secrets privilege from privileged information.
Yet, the government resists even this cabined directive
in the hopes of securing blanket permission not to
33
have any information disclosed—even information the
substance of which has already been in the public domain. In this manner, the government seeks effectively
to remove the judicial branch from any review of the
privilege claims in this case.
If the United States is allowed to preclude uniformly the disclosure of information about the torture
of Abu Zubaydah it will obviously harm Respondents.
But the harm will not be limited to Respondents. Rather, such secrecy will harm all those working globally
to ensure transparency and accountability for human
rights abuses (including authorities in Poland who are
seeking to meet their human rights obligations as to
Abu Zubaydah) and the victims of such abuses.
After all, if the country that has sought to be a
standard bearer for protecting freedoms and rights is
permitted to ignore its obligations in this context, it
can only embolden bad actors around the world. In
fact, dictators would be handed a golden opportunity
to point to the United States to justify their own mistreatment of people—mistreatment the United States
would rightly condemn, albeit with less moral force.
Countries that are hostile to the United States and
whose fundamental values do not align with the legitimate interests of the international community should
be denied the opportunity to cite actual U.S. abuses as
supposed justification for their own violations. In addition, if the government’s arguments prevail, the relationship of the United States with critical allies will
suffer, harming the U.S.’s strategic interests generally.
34
In sum, this country’s credibility on these critical
issues will be significantly weakened if the government’s position is sustained. And, instead of seeking to
act as a moral leader, the United States would obstruct
the arc of justice, which all people of good faith want to
see move away from torture and secrecy.
---------------------------------♦---------------------------------
CONCLUSION
The Court should affirm the order of the Court of
Appeals.
Respectfully submitted,
TIMOTHY J. DROSKE
Counsel of Record
DORSEY & WHITNEY LLP
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August 20, 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.